ALERTER
When are findings of a civil court admissible in a criminal trial?

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In an important decision for practitioners in “cross-over” work between overlapping different jurisdictions, the CACD held in  R v  Javed Sheikh that the old case of Hollington v Hewthorn is not authority for the proposition that the judgments of a civil court are inadmissible in criminal proceedings.

On the contrary, the CACD held that where the judgment of a civil court is relevant to the issues before a criminal court, then this will be admissible notwithstanding the prejudice it might cause a defendant.

The ruling in Javed Sheikh [2025] EWCA Crim 56

The Facts: D renewed his application for leave to appeal against his conviction of stalking causing fear of violence/serious alarm or distress, relating to a blog which was used to carry out a campaign of harassment against an Upper Tribunal judge.

Ten years earlier, D had been unsuccessful in proceedings before the Upper Tribunal.  A blog was subsequently set up and maintained by D.  Its content was directed at the judge in the Upper Tribunal and his family, and included false accusations of serious misconduct and other abusive and offensive material.

The defence case was that D was not responsible for the blog or, alternatively, that the content of the blog was an exercise of free speech.  Prior to the criminal trial, the civil courts issued injunctions against D.  D breached the injunctions and was committed to prison following contempt proceedings.

At the criminal trial, evidence of the civil injunctions and contempt proceedings was admitted as being relevant to the “chronology and analysis of the blog, which developed in relation to matters occurring in the civil proceedings and allied to this the issue of motive” [para 9].

On appeal, D argued that evidence of the civil judgments was inadmissible having regard to the rule in Hollington v Hewthorn [1943] KB 587.

Dismissing the application: the CACD held that Hollington v Hewthorn is not authority for the proposition that any or all findings made by a civil court are inadmissible in criminal proceedings.  The present case was analogous to Hogart [2007] EWCA Crim 338, in which findings in a civil judgment were admissible where earlier civil proceedings had involved allegations of a similar nature to those that were before the jury.  Questions could legitimately be asked in criminal proceedings in cross-examination about the allegations in the civil proceedings, and “the jury would be mystified if they were told there were proceedings in which these allegations were made but they could not be told what the judge had found in relation to them” [para 10].

In the present case, the civil court’s finding that D was the blogger was admissible but not determinative in the criminal trial, which was subject to a different standard of proof and a different evidential basis.

Analysis

In Hollington v Hewthorn, the Court of Appeal laid down a rule that the findings and decision of a court or tribunal are not admissible in subsequent proceedings, unless the parties to both sets of proceedings are the same.  The rule therefore prevents the admission in criminal proceedings of a previous civil judgment as evidence of the facts found by the civil court (see R(D) [1996] QB 283).

Parliament has created a number of statutory exceptions to Hollington in the civil jurisdiction, and s.74 Police and Criminal Evidence Act (PACE) 1984 created a limited exception in criminal proceedings.  Shortly after the bad character provisions of the CJA 2003 came into force, the CACD suggested that the effect of s.99 of that Act was to abolish the rule altogether in the context of criminal proceedings (see Kordasinski [2006] EWCA Crim 2984).  Later decisions have acknowledged its continuing existence (see, eg Levey [2006] EWCA Crim 1902; Hogart, above).

Javed Sheikh submitted that the latter view is correct.  Section 99(1) provides that “the common law rules governing the admissibility of bad character in criminal proceedings are abolished”, but the rule in Hollington did not concern bad character.  Rather, the basis of the rule was that the findings/ decisions of earlier courts are both hearsay and opinion evidence, and the opinion of an earlier court is not relevant to an issue in subsequent proceedings.

In Hogart, the CACD acknowledged that the rule in Hollington means that no finding of a civil court on the matters in issue in a criminal case is admissible in criminal proceedings [Hogart at para 16].  That case concerned allegations of dishonesty and deception relating to the theft of money from the complainant’s bank account.  The earlier civil proceedings had involved similar behaviour towards a different victim, resulting in a High Court judgment against D for the sum he had taken on that occasion.  The judge’s findings were admissible because the prosecution were relying on them to show that D had a history of practising deceit in similar circumstances, ie the findings did not cover the factual circumstances with which the jury were concerned.

In the present case, similarly, the prosecution were not arguing that the findings of the civil court were sufficient to prove that D was the blogger.  Rather, the fact of the civil proceedings was admissible as part of the chronology.  D could legitimately be cross-examined about how the blog had developed following the civil proceedings.  As in Hogart, it would be nonsensical if the jury could be told that those proceedings had taken place but not told of the findings and decisions the civil court had made.

So for practitioners working in the regulatory field, where there is frequent cross-over between jurisdictions, Javed Sheikh establishes the findings of fact and rulings made by a civil court are admissible in criminal proceedings if they satisfy the relevance test.  That is relevance to the issues of fact before a jury or Magistrate.  The important caveat is the civil court’s judgment does replace the criminal courts duty to determine the issues and facts according to its rules of evidence and standard of proof.  Just because a civil court has found a fact proved, and that fact is admissible in the criminal court as being relevant to the issues, does not mean a criminal court must come to the same conclusion. That will be a decision for the jury.

Tim Green KC is one of the leaders at the Bar for crisis management work.  Tim has been recommended by the latest editions of Chambers UK and Legal 500 in eight crisis management related categories including health & safety, environmental, business crime and inquiries and inquests.  Please follow this link for his biography. 

Tim Green KC
19 June 2025

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